As part of our continuing commitment to provide
outstanding representation and to serve as an information resource, we wish to
inform you of a recent appellate decision concerning summary judgment in a slip
and fall case.

In September 2013, we wrote about a case in which our
client Costco was granted summary judgment. In Holmes v. Costco, the
plaintiff slipped and fell at a Costco warehouse by the check-out
registers. When the Administrative Manager was notified, she inspected
the area and found a sticky substance like gum, not a liquid. The
Administrative Manager directed the plaintiff to fill out a report which
provided in part that plaintiff "was standing at the check-out line and
when I moved further up to the counter I slipped and fell to the floor".
Costco moved for summary judgment.

We provided evidence from the assistant manager that
there was a floorwalk during the time plaintiff claims she fell and no foreign
substance or any other problem was detected. The floorwalk was also produced
which showed that there was no known spills or tripping hazards. Our motion for
summary judgment was granted with the Court finding that plaintiff had failed
to establish any dangerous or defective condition and that plaintiff had not
refuted Costco’s contention that they could not have actual or constructive
notice of a dangerous or defective condition. The lower court noted that Costco
had shown that plaintiff had presented four (4) different versions of the
events.

Notably, plaintiff’s son alleged that plaintiff fell into
a shopping cart due to a defective wheel that had jammed, and that he found a
screw from such a wheel lying on the floor. In opposition to Costco’s summary
judgment motion, the son later submitted an affidavit in which he claimed that
the plaintiff fell due to a combination of a shopping cart wheels jamming and
the cellophane paper on the floor.

Plaintiff appealed to the Appellate Term which has now
rendered a decision. The Appellate Term noted that plaintiff’s deposition
testimony provided nothing more than mere speculation as to the cause of the
accident and offered nothing to indicate that the defendants created or had
notice of the hazard. The Court found that plaintiff did not know long the
water or cellophane was on the floor or how it got there, and did not observe
anything on the floor prior to her fall. The Court noted that “[t]o the extent
that plaintiff’s son now claims to have seen the cellophane more than one hour
before the accident, we can only consider such statements to have been tailored
to avoid the consequences of his earlier testimony - where he alleged that the
accident was caused by a defective wheel on a shopping cart”. The
Appellate Term found this insufficient to raise a triable issue of fact and
affirmed the granting of summary judgment.

When a plaintiff offers different versions of how an
accident happened, there is the opportunity to use this to formulate a summary
judgment motion and argue that the plaintiff is speculating about the cause of
the accident. This can give a Court a sound reason to dismiss the case.